[Cite as State ex rel. Daily Servs., L.L.C. v. Indus. Comm., 2017-Ohio-2771.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Daily Services, LLC, : 

dba Iforce, 

 : 

 Relator, 

 : 

v. No. 16AP-604 

 : 

Industrial Commission of Ohio (REGULAR CALENDAR) 

and : 

Darion Stanford, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on May 11, 2017

 

Pickrel Schaeffer & Ebeling, and Michele L. King, for relator. 

F. Christopher Oehl, for respondent Darion Stanford. 

Michael DeWine, Attorney General, and Lisa R. Miller, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

TYACK, P.J. 

{¶ 1} Daily Services, LLC, dba Iforce, filed this action in mandamus seeking a writ 

to compel the Industrial Commission of Ohio to overturn its order granting payment for 

rotator cuff repair surgery and related treatment. 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. 

{¶ 3} The parties stipulated the pertinent evidence and filed briefs. The 

magistrate, in turn, issued a magistrate's decision, appended hereto, which contains 
No. 16AP-604 2 

detailed findings of fact and conclusions of law. The magistrate's decision contains a 

recommendation that we deny the request for a writ of mandamus. 

{¶ 4} No party has filed objections to the magistrate's decision. 

{¶ 5} After careful review, we find no error of law or fact on the face of the 

magistrate's decision. We, therefore, adopt the findings of fact and conclusions of law 

contained in the magistrate's decision. As a result, we deny the request for a writ of 

mandamus. 

Writ denied. 

SADLER and DORRIAN, JJ., concur. 

 

 
No. 16AP-604 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Daily Services, LLC, : 

dba Iforce, 

 : 

 Relator, 

 : 

v. No. 16AP-604 

 : 

Industrial Commission of Ohio (REGULAR CALENDAR) 

and : 

Darion Stanford, 

 : 

 Respondents. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on February 22, 2017

 

Pickrel Schaeffer & Ebeling, and Michele L. King, for relator. 

F. Christopher Oehl, for respondent Darion Stanford. 

Michael DeWine, Attorney General, and Lisa R. Miller, for 

respondent Industrial Commission of Ohio.

 

IN MANDAMUS 

{¶ 6} Relator, Daily Services, LLC, dba IForce, has filed this original action 

requesting that this court issue a writ of mandamus ordering respondent, Industrial 

Commission of Ohio ("commission"), to vacate its order which authorized a second 

rotator cuff repair surgery, including preoperative testing and postoperative physical 

therapy as requested by Darion Stanford ("claimant"), and ordering the commission to 
No. 16AP-604 4 

find that claimant had an intervening injury to his right shoulder which broke the chain of 

causation. 

Findings of Fact:

{¶ 7} 1. Claimant sustained a work-related injury on October 16, 2013, and his 

workers' compensation claim has been allowed for the following conditions: "lumbosacral 

contusion; right shoulder sprain; right upper arm sprain; right shoulder contusion; right 

upper arm contusion, tear supraspinatus, right; tear subscapularis, right." 

{¶ 8} 2. An MRI taken April 29, 2014 revealed the following: 

[One] Full thickness supraspinatus tendon tear anterior 

leading edge of the tendon in the parafootprint location. 

[Two] Chronic appearing attenuation involving portions of 

the mid to posterior supraspinatus tendon critical zone fibers 

with component of partial thickness tear. 

[Three] Articular sided fraying of the subscapularis tendon 

with subtle low grade partial intrasubstance tear of the 

superior tendon. 

{¶ 9} 3. On July 15, 2015, Michael S. Knapic, D.O., performed arthroscopic 

surgery on claimant's right shoulder. The operative report provides: 

There was severe hypertrophic subacromial bursitis. A 

complete subacromial bursectomy was carried out with a 

combination of the shaver and a 90-degree suction-tipped 

ArthroCare wand. This revealed an anterior-inferior 

subacromial spur and hook, which was impinging the rotator 

cuff. There was also significant AC joint arthrosis. 

{¶ 10} 4. Following surgery, claimant underwent post-operative physical therapy 

and continued to treat with Dr. Knapic. 

{¶ 11} 5. In a physical therapy note dated November 2, 2015, claimant indicated 

that he was returning to light-duty work. 

{¶ 12} 6. In a physical therapy note dated November 6, 2015, claimant reported 

"soreness noting he came straight from work and did not take any pain medication prior 

to coming into treatment." 
No. 16AP-604 5 

{¶ 13} 7. A week later, on November 17, 2015, claimant reported to physical 

therapy complaining of "increased soreness and 'clicking' in shoulder this date after trying 

to lift a 20# bag of dog food at work last night. States he continues to have pinching and 

clicking pain with abduction." 

{¶ 14} 8. A physical therapy note dated December 2, 2015 indicated that claimant 

had received approval for an additional eight sessions to work on strengthening. 

{¶ 15} 9. A review of the physical therapy notes from December 2015 through 

February 2016 reveal the following: 

12/09/2015 

The patient reports that he feels 80-85% improved overall in 

regards to his right shoulder. The patient notes that he has 6-

7/10 pain at the worst with 1/10 pain at the least. The patient 

notes that he feels that he has decreased endurance and 

strength in the shoulder and has pain with shoulder 

abduction, shoulder ER and functional IR. The patient 

describes his pain as sharp and stabbing with shoulder 

abduction and achy at rest. 

* * * 

Remaining Impairments Requiring Continued Treatment: 

Decreased ADL's, decreased endurance, decreased strength, 

decreased flexibility, increased pain, limited work capacity 

and decreased range of motion. 

12/22/2015 

[Patient] reports right shoulder is doing well. Notes that he is 

back to work without c/o's and performing normal 

household activities without c/o's. [Patient] does note some 

popping and clicking with abduction especially when palm is 

down. 

12/29/2015 

[Patient] with no new complaints/concerns. States he 

continues to have intermittent shoulder soreness depending 

on activity level. 

01/05/2016 

[Patient] with nothing new to report. Continues to struggle 

with overhead lifting. 

01/21/2016 
No. 16AP-604 6 

Patient reports a set back a week ago Tuesday. He states that 

he began having increased pain after mopping the floor. He 

reports pain over the posterior aspect of the shoulder with 

referred pain into his bicep. He notes that simple tasks such 

as picking up a coffee cup causes him increased pain. Patient 

also report[s] night time symptom, often waking due to pain. 

He has continued to utilize Vicodin for pain as needed. 

01/22/2016 

[Patient] returned to work and was mopping on 1-13-16. He 

notes that he was advised from surgeon to watch this type of 

motion. His supervisor at the time insisted he mop the 

floors, which he did for 15-20 minutes and felt pain after. 

Pain is 10/10 and occasionally will decrease to 8/10 with 

Norco. He is off work until MRI is performed. [Patient] notes 

that the pain is in right cervical, upper trap and into lateral 

arm. He will occasionally have tingling in fingers 2-4. His c-9 

was extended and has returned to therapy. 

01/26/2016 

[Patient] reports no significant relief with HEP, though not 

worse. He is still having pain in right lateral arm and tingling 

in 2-4th fingers. He reports that he felt some relief when 

slouching a few times. [Patient] notes that when he is in right 

sidelying that numbness is worse. 

01/28/2016 

[Patient] reports feeling maybe a slight improvement from 

last visit. He is still having some tingling in fingers and pain 

in the arm. Thinks traction helped some. [Patient] has MRI 

scheduled for tomorrow. 

02/02/2016 

[Patient] reports that he has no change in symptoms after 

traction last visit. The patient notes increased tingling into 

the hand. The patient notes that the only position that 

decreases his symptoms is left sidebending. The patient 

notes that he is unable to sleep well at night secondary to the 

pain. The patient notes that his MRI had to be rescheduled 

as he was unable to tolerate the position as it was painful. 

The patient notes that he has the "same" pain again today. 

02/04/2016 

Feeling a little better, upper arm doesn't hurt as much and 

tingling in hand has decreased. He was able to tolerate the 
No. 16AP-604 7 

MRI yesterday with increased medication. He has his MRI 

F/U with Dr. Knapic 2-9-16. 

{¶ 16} 10. A second MRI performed February 3, 2016 revealed the following: 

[One] Near full to full thickness 11mm nonrefracted tear at 

confluence of supraspinatus and infraspinatus insertions at 

the reparative site. Mild peritendinobursitis. No retraction. 

Mild muscle fatty replacement. 

[Two] Inconspicuous biceps arcuate segment. Differential 

considerations include chronic tear, tenotomy and tenodesis. 

No acute tear. 

[Three] Small superior labrum likely has been debrided. 

[Four] Outlet decompression. 

{¶ 17} 11. On February 11, 2016, Dr. Knapic completed a C-9 requesting right 

shoulder revision rotator cuff surgery along with pre-admission testing and post-operative 

physical therapy. 

{¶ 18} 12. Based on the February 18, 2016 review by Kevin Smith, M.D., who 

opined that the request was directed at a recent injury which had non-allowed conditions. 

Relator's managed care organization denied the request for surgery. 

{¶ 19} 13. James H. Rutherford, M.D., conducted a peer review concerning the 

issue of whether the second right shoulder revision rotator cuff surgery should be 

authorized. In his March 4, 2016 report, Dr. Rutherford opined that the requested 

surgery was related to the allowed conditions and met the Miller criteria, stating: 

[One] Are the medical services reasonably related to 

the industrial injury? Yes. There is a claim allowance for 

tear of the subscapularis and the supraspinatus of the right 

shoulder and a rotator cuff repair was done on July 15, 2015. 

The medical records indicate that Mr. Stanford did 

reasonably well following the surgery and physical therapy, 

but then he was mopping a floor for a different employer and 

developed pain and decreased range of motion of his right 

shoulder, a subsequent MRI showed a retear in the area of 

the previous rotator cuff repair of the right shoulder with the 

MRI showing a near full thickness 11 mm non-retracted tear 

at the confluence of the supraspinatus and infraspinatus 

insertions at the reparative site. In conclusion it is my 
No. 16AP-604 8 

opinion that the requested medical services are reasonably 

related to the industrial injury. 

[Two] Are the services reasonably necessary for 

treatment of the industrial injury? Yes. The medical 

records indicate that there has been a retear at the previous 

surgical repair site of the rotator cuff. The requested medical 

services are reasonably necessary for the treatment of the 

industrial injury. 

[Three] Are the costs for the services medically 

reasonable? Yes. 

(Emphasis sic.) 

{¶ 20} 14. In an order mailed March 14, 2016, the Ohio Bureau of Workers' 

Compensation ("BWC") approved the request for surgery, stating: 

Per independent peer review dated 3/4/15 the requested 

service is reasonably related, appropriate and medically 

necessary for treatment of the industrial injury. James 

Rutherford, MD opines "A repeat MRI of the right shoulder 

was done on February 3, 2016 due to ongoing pain in the 

shoulder. This showed a retear in the area of the [] previous 

rotator cuff repair of the right shoulder with the MRI 

showing a near full thickness 11 mm non-retracted tear at the 

confluence of the supraspinatus and infraspinatus insertions 

at the reparative site. It is my opinion that the C9 dated 

2/11/16 requesting right shoulder revision rotator cuff 

(39827), post op therapy two to three times a week for six to 

eight weeks, pre-admission testing/outpatient for period 

beginning 2/11/16 thru 5/27/16 should be approved in its 

entirety." The BWC finds the opinion of Dr. Rutherford 

persuasive & grants the injured workers appeal filed 

2/23/16. The C9 dated 2/11/16 is approved as requested. 

 

{¶ 21} 15 On March 11, 2016, Dr. Knapic performed a second arthroscopic surgery 

on claimant's right shoulder. The pre and post-operative diagnosis was: "Recurrent 

rotator cuff tear, right shoulder." 

{¶ 22} 16. Relator continued to challenge the authorization of the surgery and a 

hearing was held before a district hearing officer ("DHO") on April 25, 2016. The DHO 

authorized the surgery as well as the pre-admission testing and post-operative physical 

therapy finding that claimant had demonstrated that they were necessary for the 
No. 16AP-604 9 

treatment of the allowed conditions in his claim. The DHO relied on the following 

evidence: 

This order is based on the C-9 dated 02/11/2016, MRI report 

dated 02/03/2016, 03/04/2016 report completed by James 

Rutherford, M.D., 03/11/2016 operative report, and 

03/31/2016 treatment record completed by Michael Knapic, 

D.O. 

{¶ 23} 17. Relator had a file review conducted by Dean W. Erickson, M.D. In his 

May 23, 2016 report, Dr. Erickson concluded that claimant had two injuries following the 

October 16, 2013 work-related injury with relator. Dr. Erickson opined that claimant 

sustained new injuries in November 2015 when he lifted a 20 pound bag of dog food and 

in January 2016 when he was mopping a floor. 

{¶ 24} 18. Relator's further appeal was heard before a staff hearing officer ("SHO") 

on June 3, 2016. The SHO affirmed the prior DHO order and relied on the following 

medical evidence: 

This decision is based on the evidence presented at hearing 

which reflects no new claims have been filed as a result of the 

exacerbating incidents in November of 2015 and January of 

2016; the 02/03/2016 MRI of the right shoulder; the 

treatment notes, the 02/11/2016 C-9 report, and the 

03/11/2016 operative report of Dr. Knapic; and the 

03/04/2016 report of James Rutherford, M.D. 

{¶ 25} 19. Relator's further appeal was refused by order of the commission mailed 

June 29, 2016. 

{¶ 26} 20. Thereafter, relator filed this mandamus action. 

Conclusions of Law: 

{¶ 27} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course 

of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 28} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 
No. 16AP-604 10 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

{¶ 29} In order to demonstrate entitlement to the disputed medical treatment, 

claimant was required to meet a three-prong test for the authorization of medical services. 

Pursuant to State ex rel. Miller v. Indus. Comm., 71 Ohio St.3d 229 (1994), that threeprong test provides: (1) are the medical services reasonably related to the industrial 

injury, that is the allowed conditions; (2) are the services reasonably necessary for the 

treatment of the industrial injury; and (3) is the cost of those services medically 

reasonable? Where the record contains some evidence to support the commission's 

findings, there is no abuse of discretion and mandamus is not appropriate. 

{¶ 30} On October 16, 2013, claimant sustained a work-related injury which 

resulted in a full thickness tear of the supraspinatus tendon in his right shoulder. 

Claimant underwent surgery on July 15, 2015. Following surgery, claimant participated in 

physical therapy. As noted in the findings of fact, claimant progressed well and returned 

to light-duty work in early November 2015. However, shortly thereafter, claimant began 

complaining of soreness and clicking in his right shoulder. Claimant noticed an increase 

in the pain after lifting a 20 pound bag of dog food at work in November 2015 and later, in 

January 2016, he experienced increased pain while mopping the floor at work. A 

subsequent MRI in February 2016 revealed a near full thickness re-tear of the previously 

repaired rotator cuff. 

{¶ 31} Relator asserts that claimant sustained new injuries to his shoulder in 

November 2015 when he lifted a 20 pound bag of dog food and in January 2016 when he 

was mopping the floor. Relator argues that these two new injuries break the causal 
No. 16AP-604 11 

connection between the work-related injury and claimant's need for a second surgery. In 

support of its argument, relator points to the report of Dr. Erickson. 

{¶ 32} In finding that the causal connection was not broken, the commission relied 

on the physical therapy notes, the second operative report, and the March 4, 2016 report 

of Dr. Rutherford who opined that the need for the second surgery was indeed related to 

the original work-related injury. Dr. Rutherford specifically noted that claimant had lifted 

a bag of dog food and experienced an increase of pain and that, during and after mopping 

the floor, he likewise noted an increase in pain. 

{¶ 33} It is undisputed that an intervening injury can break the causal connection 

between a work-related injury and the allowed conditions resulting therefrom, and a later 

request for treatment or compensation. However, the commission has discretion to 

determine whether or not events which occur actually constitute intervening injuries. 

{¶ 34} The act of lifting a 20 pound bag of dog food and mopping a floor are two 

activities which people perform on a daily basis and are not necessarily considered 

intervening injuries such as a fall or a motor vehicle accident would be. It would be nice if 

torn rotator cuffs could be fixed with one surgery and injured workers could be returned 

to normal; however, that is not reality. It is common knowledge that surgery can leave the 

repaired tendons in a compromised state making it more difficult for an injured worker to 

perform ordinary tasks. Twenty pounds is not a lot of weight for a man to lift and 

mopping a floor is an ordinary household task performed by most people. The magistrate 

finds that the commission did not abuse its discretion in refusing to accept relator's 

argument that these two ordinary incidents constituted intervening injuries breaking the 

causal connection. 

{¶ 35} Based on the foregoing, it is this magistrate's conclusion that relator has not 

demonstrated that the commission abused its discretion in authorizing surgery as well as 

pre-admission testing and post-operative therapy for relator's shoulder, and this court 

should deny relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 
No. 16AP-604 12 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).